Impact of non-disclosure in divorce/dissolution finance cases

When taking steps to resolve relationship finances, you will be advised of the duty of both parties to provide full and frank disclosure of their finances. 

The statement used in divorce/dissolution proceedings (known as ‘Form E’) refers specifically to this requirement on the front page:-

 You have a duty to the court to give a full, frank and clear disclosure of all your financial and other relevant circumstances.  A failure to give full and accurate disclosure may result in any order the court makes being set aside.

It is long established that, where the absence of full and frank disclosure has led the court to make an order which is substantially different from that which it would have made if such disclosure had taken place, the court may set aside that order.

In its recent decision in the case of S v S (May 2013), the court considered the significance of non-disclosure.  The case highlights that, essentially, three questions will arise to the court if non-disclosure can be established:-

  • What would the Court have done if it had known about the alleged non-disclosure?
  • Would the order have been materially different from that ordered by the approval of the agreement?
  • If the claimed non-disclosure would change the deal or order, can the terms be re-visited?

In most cases, the parties will ultimately choose the level of disclosure that they make or accept in order to proceed, and therefore they may not achieve disclosure to the fullest degree before settling.  However, the above decision reminds us that a failure to disclose relevant financial details could lead to further litigation and legal costs, and to the original order unravelling at a later point.

For further information and advice, please contact our Family and Divorce team at: